Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex ("GRCC") violated the Open Records Act in denying inmate John McDowell's request for a "urinalysis log ? where they have my name listed ? ." For the reasons stated below, we find that GRCC's initial reliance on KRS 61.878(1)(h) to deny production of the record was in error, but GRCC corrected the error on appeal by conducting a good faith search for the requested record and determining that it does not exist.
On March 4, 2019, inmate John McDowell ("Appellant") submitted a request for a copy of "? the urinalysis log where they are stored that have my name listed for when my urinalysis was sent out. The dates will be from 12/25/2018-12/28/2018 (copy of all with my name.)" On March 8, 2019, Teresa K. Moore, Offender Information Specialist, denied the request on the basis of KRS 61.878(1)(h). 1 She stated that "the matter is currently under investigation, therefore the requested records are exempt and your request is denied at this time."
Appellant appealed that denial, stating that the "report has already been investigated. Now I am awaiting a hearing. ? The only information the log contains is the inmate's name and [the] officer's name who [logged] the test in and out." Oran S. McFarlan, III, attorney, responded on behalf of GRCC on April 3, 2019. That response was unclear as to whether GRCC was continuing to rely on KRS 61.878(1)(h) as a basis for denying the requested record, as the response stated that, after further investigation, GRCC determined that Appellant's name was not on the record that he was apparently requesting. GRCC then stated that, "a public agency cannot afford a requester access to a record that it does not have or which does not exist." GRCC cited a line of decisions by this office in support of its denial.
In order to fully understand the basis for GRCC's denial, this office requested additional information from GRCC, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. The office sought clarification as to whether GRCC was continuing to rely on KRS 61.878(1)(h) as a basis for denying the requested record.
GRCC responded to our request for information on April 10, 2019, and stated that the initial reliance on the exception at KRS 61.878(1)(h) was mistaken and that the response should have been that the requested records do not exist. GRCC explained that the "urinalysis log" is actually a log "used to document when the refrigerator containing evidence at the institution is opened and closed. Notations in this log often identify 'urine sample' or 'urine' as the reason the evidence refrigerator has been opened; the log also contains 'send out' notations and a column for inmate name and number (if applicable)." GRCC staff conducted a search of the log regarding the dates specified by Appellant, (December 25, 2018 through December 28, 2018), and determined that his name does not appear on the log for those dates. A copy of GRCC's response was provided to Appellant.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
GRCC's initial denial failed to state that the requested record did not exist, and even presumed the existence of the requested record in its reliance on KRS 61.878(1)(h). That initial denial was deficient as it did not clearly state that the requested record does not exist. Upon appeal has GRCC cured its initial violation by showing that a good faith search was conducted for the requested record and affirmatively concluded that it does not exist. We affirm GRCC's denial on the basis that the requested record does not exist and that GRCC has now affirmatively so indicated to Appellant.
GRCC also relied on KRS 197.025(2) as an additional basis for denying Appellant's request. Pursuant to KRS 197.025(2):
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
(Emphasis added.) As amended in 1998, this provision authorized correctional facilities to withhold a record from an inmate unless the record "pertain[ed] to that individual." 98-ORD-150, p. 3. In 2002, however, the General Assembly further narrowed the scope of public records available to inmates by stipulating that correctional facilities and jails must disclose only those records containing "a specific reference" to the requesting inmate, as GRCC has correctly argued. 04-ORD-015, p. 3; 03-ORD-073, p. 3. "The net effect of [the 2002] amendment has been to further curtail the inmate's right of access to records maintained by the [Department of Corrections] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3; see 03-ORD-007; 04-ORD-015; 12-ORD-064. To this extent, the identity of the requester is directly relevant and inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2), at least with regard to records in the custody of facilities such as GRCC. 99-ORD-161, p. 3; 04-ORD-076; 13-ORD-013.
The instant appeal presents no reason to depart from prior decisions recognizing that the Department of Corrections and facilities under its jurisdiction, including GRCC, are not required to produce records to any inmate unless those records contain a "specific reference" to that individual regardless of the individual's purpose in requesting the records. The decisions in 08-ORD-008 and 12-ORD-064 reaffirmed this principle, specifically in relation to menus. Because the record at issue does not contain a specific reference to Appellant, as KRS 197.025(2) requires, he is not entitled to inspect such record or to receive copies thereof. Accordingly, GRCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Appellant's request, as explained on appeal. 2 99-ORD-161, p. 2. See 07-ORD-219; 10-ORD-228.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(h) states:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]
2 KRS 61.878(1)(l) permits public agencies to deny the release of "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"